Gogalsingh Badalsingh Kalyani vs The State Of Maharashtra
2015 Latest Caselaw 323 Bom

                                                                1-APPEAL-809-2013.doc


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
                         CRIMINAL APPELLATE JURISDICTION




                                                  
                          CRIMINAL APPEAL NO.809 OF 2013




                                                 
     GAGALSINGH BADALSINGH KALYANI                         )...APPELLANT

              V/s.




                                         
     THE STATE OF MAHARASHTRA                              )...RESPONDENT
                             
     Shri Vikas Shivarkar, Advocate for the Appellant.
                            
     Smt.S.Gajare-Dhumal, APP for the Respondent - State.


                                   CORAM    :     ABHAY M. THIPSAY, J.

                                   DATE     :     11th SEPTEMBER 2015.
   



     ORAL JUDGMENT :





     1                This appeal is directed against the judgment and order 

dated 26th June 2013, delivered by the Additional Sessions Judge,

Pune, in Sessions Case No.506 of 2012, convicting the appellant of

an offence punishable under Section 392 of the Indian Penal Code

(IPC) and sentencing him to suffer Rigorous Imprisonment for 4

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years and to pay a fine of Rs.5,000/-, in default, to suffer Rigorous

Imprisonment for 4 months. There were four other accused in the

said case. The appellant and the said other accused, all were

charged of an offence punishable under Section 395 of the IPC

read with Section 34 of the IPC. The learned Additional Sessions

Judge, however, after holding a trial, held that the charge of an

offence punishable under Section 395 of the IPC was not proved.

He held that the charge of an offence punishable under Section

392 of the IPC was proved, and that too, only against the present

appellant, who was accused no.1 in the said case. The learned

Additional Sessions Judge acquitted the other accused.

2 I have heard Shri Vikas Shivarkar, the learned counsel

for the appellant. I have heard Smt.S.Gajare-Dhumal, the learned

APP for the State. With their assistance, I have gone through the

entire evidence adduced during the trial. I have carefully gone

through the impugned judgment.

3 The prosecution case, in brief, be stated thus :

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Indrajeet Jadhav (PW1), the First Informant, had,

along with his friend Chetan Mokashi (PW3), gone to a pan stall

at about 10.30 p.m. on 28th April 2012. At that time, five to seven

persons belonging to Shikalkar community came there and as one

of the said persons dashed against Chetan, a quarrel took place

between Indrajeet and Chetan on one hand and the Shikalkar

boys on the other hand. After the quarrel, the boys left the pan

stall, waited at some distance and again came back. After coming

back, they started beating Chetan. Indrajeet tried to intervene,

but the boys beat Indrajeet also. During the incident, the gold

chain which Indrajeet was wearing and the money purse which he

was having, was taken away by the said boys. The boys then ran

away from the spot. While running away, one of the boys shouted

- 'Gogalsingh chal bhag'. Three of the boys ran away by

motorcycle bearing number MH-12 HS 4984. There was an ATM

card, a cash of Rs.600/- and the driving license of Indrajeet in his

money purse. The gold chain was weighing 6 gms. When the

incident was going on, Chetan, on being frightened had run away.

Indrajeet went to the Police Station and lodged a report which

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was treated as First Information Report (FIR) (Exhibit 17).

Indrajeet showed the spot of incident to the police.

4 In the course of investigation, the appellant and the

other accused were arrested. The robbed gold chain of Indrajeet

was recovered. Part of the same was recovered from the appellant

and the remaining part was recovered from accused no.4

Sangatsingh. On completion of investigation, charge-sheet

alleging commission of an offence punishable under Section 395

of the IPC was filed against the appellant and the other accused.

5 During the trial, the prosecution examined eight

witnesses. The first witness, as aforesaid, is the First Informant

Indrajeet. The second one is Sanjay Thite, a panch in respect of

the panchnama under which a part of the robbed gold chain was

allegedly recovered from the house of the appellant. The third

witness is Chetan Mokashi. The fourth one is Pintu Sharma, who

is the owner of the pan stall, before whom the alleged incident

had taken place. It may be observed here itself that this witness

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claimed that he could not identify any of the persons as it was

dark. The fifth witness P.I. Vishambar Golde is the Investigating

Officer. He had arrested the appellant and accused no.2

Jaypalsingh. He had also seized the motorcycle bearing number

MH-12 HS 4984. The sixth witness Sanjay Sinnalkar is a panch in

respect of the disclosure statement made by accused no.4

Sangatsingh. His evidence is not relevant in the context of the

present appeal. The seventh witness A.P.I. Satish Chavan has

carried out part of the investigation which related to recovery of

other part of the gold chain, allegedly, at the instance of the

accused no.4 Sangatsingh. His evidence is also not relevant in the

context of the present case. The eighth witness is Dr.Virendra

Ghogare, attached to Sasoon hospital, who was on duty as a

Casualty Medical Officer on 29th April 2012, and who had

examined the First Informant Indrajeet. He had noticed certain

injuries on the person of Indrajeet.

6 Shri Shivarkar submitted that the case of the present

appellant was not different from that of the co-accused, who were

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acquitted. He submitted that the evidence against the appellant

consisted of his identification as one of the culprits by Indrajeet

(PW1) and Chetan (PW3), and the recovery of a part of the

robbed property, allegedly at his instance, and from his house.

He submitted that, the two other accused, who were also

identified by Indrajeet, were, however, acquitted by the learned

trial Judge. He also pointed out that the remaining part of the

robbed property was allegedly recovered from accused no.4

Sangatsingh, but he was also acquitted by the learned trial Judge.

Thus, the substance of his contention is that there was no basic

difference between the case of the appellant and that of the other

accused, who have been acquitted.

7 After carefully going through the impugned judgment,

it appears that the learned Judge held the appellant guilty as a

result of the combination of the incriminating circumstances

against the appellant, which combination was not available

against any of the other accused. The learned Judge has observed

in paragraph 29 of the judgment that the case of the appellant

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was on a different footing from the remaining accused. The

learned Judge categorically observed that there were mainly three

incriminating circumstances against the appellant and listed those

circumstances as follows :

i) his identification in the court by the First Informant,

ii) the specific mention of his name in the FIR in view of the

call given by his associate at the time of commission of

crime, and

iii)recovery of stolen property i.e. broken piece of gold chain.

8 To the extent that the learned Judge treated the case

of the appellant differently from the other accused, he was

certainly right, but the question is whether this difference was

sufficient to hold the appellant guilty beyond reasonable doubt.

This needs consideration, particularly because, the nature of the

prosecution evidence, has not been believed by the learned Judge

with respect to the other accused, and he has refused to hold any

of them guilty on the strength of a single incriminating

circumstance.

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     9                It   is   true   that   Indrajeet   and   Chetan,   both,   have 




                                                       

identified the appellant as one of the culprits. This identification

was done by them for the first time in the court. The learned trial

Judge has not given any value to the identification of the

appellant as one of the culprits by Chetan, in view of the

admission of Chetan that the appellant was shown to him at the

Police station on his apprehension by the police.

10 Admittedly, in this case, no Test Identification Parade

was held. Why it was not held, has not been explained. When the

offenders were not previously known to the victims, and had

made good their escape from the spot, there would ordinarily be

no justification for not holding the Test Identification Parade. No

reason has been given for not holding a Test Identification Parade.

11 There is one circumstance against the appellant,

which, if believed, would lend credence to the evidence of

identification. This circumstance, which is believed by the learned

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Additional Sessions Judge, is that, when the offenders were

running away, one of them shouted 'Gogalsingh chal bhag.'

Gogalsingh being the name of the appellant, it is claimed, that his

presence on the spot among the offenders, is indicated by such

utterance.

12 After carefully considering the matter, I am unable to

place reliance on this circumstance. The possibility of this

circumstance having been manipulated to show the involvement

of the appellant cannot be ruled out for the following reasons.

13 Admittedly, the appellant has 18 previous cases

pending against him. Though the exact number of cases pending

against him may be open to doubt, it is a fact that the appellant

has past criminal record, and as such, was clearly known to the

police. The description of the offenders was given as persons

from Shikalkar community, who keep a bun, and the appellant fits

in that description. If this circumstance is to be relied upon, it

must be felt certain that the FIR - which mentions it - was lodged

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immediately after the incident. However, such satisfaction cannot

be arrived at, in the instant case. The incident is said to have

taken place at 10.30 p.m. and the matter was reported to the

police telephonically within ten minutes thereafter. The FIR is

shown to have been registered at the police station at about 11.30

p.m. This, however, does not appear to be correct from the

evidence adduced by the prosecution witnesses themselves. It is

clear that after the matter was reported to the police, the police

came on the scene, and search for the offenders was being taken,

with the help of Indrajeet as well as Chetan, who were

accompanying them. The search was being taken till about 1.30

a.m. and Indrajeet, Chetan and the police returned to the police

station thereafter. It is, thereafter, that the FIR came to be

registered. Thus, the statement that one of the offenders while

running away shouted 'Gogalsingh chal bhag' was not made by the

First Informant immediately after the incident, but after he had

been with the police searching for the offenders, for more than

two hours. The learned APP submitted that the incident was

reported to the police immediately after its happening,

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telephonically, and though this is true, what was the information

given on telephone and whether entry was made in the Station

House Diary on the basis of that report, has not been disclosed. It

is not the case that there had been an entry showing the name of

the appellant as one of the offenders in the General / Station

House Diary at the Police Station immediately after the incident.

This suspicion - about the circumstance of one of the

offender uttering the appellant at the time of the incident -

becomes graver because of two other factors. The first is that, the

prosecution has avoided to give the details of the arrest of the

appellant, such as the time and place. According to the

Investigating Officer Shri Golde (PW5), prior to the arrest of the

appellant, he was chased and that the appellant was driving

motorcycle bearing registration number MH-12 HS 4984. The

appellant and the motorcycle were brought to the police station at

the same time. The evidence of Sanjay Thite (PW2) shows that on

29th April 2012, in the afternoon, the said motorcycle was already

at the police station, and that, the appellant was also at the police

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station. The second factor is that, neither the investigation nor

the evidence was directed towards pointing out or ascertaining

who was the offender who made that utterance. This factor

makes this circumstance further suspicious.

15 Coming to the third incriminating circumstance, viz.,

recovery of the stolen property i.e. a part of the gold chain which

was allegedly broken during the incident, the same also does not

appear to have been satisfactorily established. In that regard also,

there is evidence of PW2 Sanjay Thite, a panch, and the

Investigating Officer Golde (PW5). According to Sanjay Thite,

when he was called at the police station on 3rd May 2012, the

other panch Sanjay Sinnalkar (PW6) was also present at the police

station, and that, in the presence of Sanjay Thite and Sanjay

Sinnalkar, the appellant made a statement that he would produce

the broken piece of gold chain kept in his house. The police party

then went to the house of the appellant and from there, the

appellant allegedly produced a broken piece of gold chain. The

broken piece of gold chain produced before the court was

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identified by the witness as the same that was recovered in his

presence. This witness is a regular panch of the police, and that, it

is so, has been admitted by him. Even the other panch selected is

a regular panch of the police. Both the panchas are tea vendors

doing their business without license within the vicinity of the

police station. Apart from this, the evidence of Investigating

Officer Golde (PW5) with respect to the recovery is not in

conformity with the evidence of panch Sanjay Thite (PW2).

According to Investigating Officer Golde (PW5), the appellant

took the police party and the panchas towards a room which was

latched from outside. The latch was allegedly removed by the

appellant and then the police party and the panchas entered

inside. Now the question is, when the appellant was in custody of

the police, how come the key of the premises remained with him.

In this context, it is significant that the arrest panchnama has not

been produced and what was on the person of the appellant when

he was apprehended, is not disclosed. The panch Sanjay Thite did

not speak about the door being closed or latched and the

appellant opening it. This casts a doubt about the truth of the

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matter. This is more so, because the recovery was effected after

about four days from the apprehension of the appellant, and that

too from his house.

16 Thus, in my opinion, none of the circumstances relied

upon against the appellant, was satisfactorily established. Even

the learned trial Judge appears to be of the same view, in as much

as, he has not relied on either the evidence of the identification or

the evidence of recovery, so far as the other accused who have

been acquitted were concerned. Thus, clearly, he did not find any

single circumstance as free from suspicion. He has held the

appellant guilty only because there was a combination of the

incriminating circumstances against the appellant, while such

combination was not there in respect of the other accused.

However, just by multiplying the incriminating circumstances, the

requisite satisfaction about the appellant being one of the

offenders, cannot be arrived at, particularly, when none of these

circumstances is satisfactorily established.

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     17               So far as the identification is concerned, the same is 




                                                                             

not preceded by the Test Identification Parade. Strength is sought

to be given to the identification on the basis of the disclosure of

the name of the appellant by one of the offenders by making a

utterance at the time of the offence itself, but this circumstance is

itself suspicious in the light of the fact that, when and under what

circumstances the appellant came to be arrested, is not brought on

record, and that, the FIR has been ante-timed. This circumstance

having been introduced just to implicate the appellant, who is

already known to the police, cannot be ruled out. The evidence of

recovery of a part of the property also cannot be believed, in view

of the fact that the evidence of the panch and the evidence of

Investigating Officer Golde (PW5) differs on some relevant and

material aspects. Investigating Officer Golde has gone to the

extent of claiming that a goldsmith was kept present by him at the

time of recovery of the gold chain, though such a fact is not at all

recorded in the panchnama and is also not spoken by the panch

witnesses. This fact, which is absurd in itself, has been introduced

by the Investigating Officer Golde just to explain how the weight

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of the broken part of the gold chain is appearing in the

panchnama. If the witnesses are of such type, implicit reliance on

their testimony cannot be placed.

18 The learned Additional Sessions Judge has not placed

implicit reliance on any of the incriminating circumstances, by

itself. He was, however, influenced by the fact that there were

three incriminating circumstances against the appellant. Since all

the incriminating circumstances were weak, just by their addition,

the appellant ought not to have been convicted. The appellant also

ought to have been given the benefit of doubt like the other

accused, and should have been acquitted.

19 The appeal is allowed.

The impugned judgment and order is set aside. The appellant is acquitted. He be set at liberty forthwith.

Fine, if paid, be refunded to him.

                                        (ABHAY M. THIPSAY, J.)



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                                     CERTIFICATE




                                                    

Certified to be true and correct copy of the original signed Judgment.

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